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Opinion of the Court by

Napton, Judge.

This was an action of ejectment to recover a tract of land lying near the town of St. Charles. The judgment of the circuit court was for the defendant.

The title of the plaintiff was as follows:

1st. A concession from the lieut. governor Delassus,dated 26th November, 1801, founded on a former grant, alleged by Chouteau to have been made by Cruzat in 1787.

2d. The proceedings of the board of commissioners under the act of 1832 & 3, by whom said claim was confirmed; and,

3d. The act of 4th July, 1836, and a survey by the United States under said act.

This claim had been rejected by the commissioners in 1810.

The defendant claimed under the inhabitants of the town of St. Charles, The claim to the commons of St. Charles, *18s0 ^ar as ^ depends upon documentary evidence, is the same that contained in the case of Bird v. Montgomery, 6 Mo, Rep. p. 510. The oral testimony of a witness was also taken, the substance of which was, that witness came to St. Louis in the winter of 1796, and to St. Charles in the winter of 1798. When he came to St. Charles, the town was surrounded by a fence. The witness, looking on the plat of the survey of the commons, said, that the claim of Spencer, under Rybolt, was granted^ to conform to the fence of the commons, and to have the fence of the commons as its northern line, and looking upon the plat of survey given in evidence by the plaintiff, says the whole of the land claimed by the plaintiff’s claim, as laid down on that.plat, was included in the commons fence, wdiich was standing when he came here, and remained until after 1804.

Ejectment: od undorMstj a concession from the It. gov. of Upper 18W, founded grant aHeged to have been made in 1737, by the then liout. of XT L 21 The proceedings of the board of commissioners, under the act of congress of 1332 &3, confirming said claim. 3d, The act of 4th July, 1836, and a survey by the U. S. under said act. The premises in controversy were part of the St. Charles commons, and defendant claimed under the inhabitants of that town. Tbs court adhere to the decision made in Bird v. Montgomery, (G Mo. R. 510,) viz: The confirma, tion by the act of 4th July, 1836, cannot prevail over the previous confirmation to the inhabitants of St. Charles, by the act of 13th Juno, 1812.

After the evidence had been submitted, the court instructed the jury, that “ if they believed from the evidence that the premises in controversy were included in the tract of land surveyed under the authority of the Spanish government, for the commons of the town of St. Charles, and held by the inhabitants of said town, and enclosed by them as their commons under the Spanish government, the plaintiffs cannot recover in this action.”

There seem to be no questions arising in this case, which were not involved in the case of Bird v. Montgomery, 6 Mo. 5|Q, The oral testimony given in this case of the actual „ , . , enclosure of these commons in 1/98, and its continuance a^ter change of government in 1804, may give some additional force to the title of the commons as against this plaintiff. The confirmation by the act of 4th July, 1836, cannot prevail over the previous confirmation in 1812. 1

Judgment affirmed.

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